Patents kill (according to Crichton)

February 13, 2007 12:31 PM by Stephan Kinsella (Archive)

Or so argues Michael Crichton, in Patenting Life, a NY Times editorial (thanks to Isaac Bergman for link). Excerpts:

YOU, or someone you love, may die because of a gene patent that should never have been granted in the first place. Sound far-fetched? Unfortunately, it’s only too real.

Gene patents are now used to halt research, prevent medical testing and keep vital information from you and your doctor. Gene patents slow the pace of medical advance on deadly diseases. And they raise costs exorbitantly: a test for breast cancer that could be done for $1,000 now costs $3,000.

Why? Because the holder of the gene patent can charge whatever he wants, and does. Couldn’t somebody make a cheaper test? Sure, but the patent holder blocks any competitor’s test. He owns the gene. Nobody else can test for it. In fact, you can’t even donate your own breast cancer gene to another scientist without permission. The gene may exist in your body, but it’s now private property.

This bizarre situation has come to pass because of a mistake by an underfinanced and understaffed government agency. The United States Patent Office misinterpreted previous Supreme Court rulings and some years ago began — to the surprise of everyone, including scientists decoding the genome — to issue patents on genes.

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Comments (125)

Angelo

I gave a libertarian view of this and other intellectual property issues last week for an ethics panel. This was the only issue I got any support for.

Published: February 13, 2007 1:05 PM
happylee

Crichton is now officially solid on manmade global warming and patents. Hmm, time to add him to mises.org mailing list and see if he bites.

Published: February 13, 2007 1:22 PM
Dennis Shoup

I don't know, he used the term "underfunded and understaffed government agency,' there's no such thing. That being said, he is certainly a fellow traveler in some regards.

Published: February 13, 2007 1:35 PM
Sasha Radeta

We often hear that private property rights kill poor people in Africa all the time...
"While some children are dying, some rich Americans are choking in excess wealth...."

Such stupid argument are completely baseless. Just like my property (and my refusal to let someone use it without any restrictions) are not invading against anyone's physical body & property - likewise, my refusal to allow someone to use my body or my body's products is not killing anyone - the illnesses are.

If I accidentally drop my saliva on your property, you are more than welcome to treat it as my lost property... and as you well know, the finder would never have a better claim to possess such property than the original owner.

Published: February 13, 2007 3:24 PM
Daniel M. Ryan

I didn't even know it was possible to one-up Andy Galambos, but the U.S. Patent Office seems to have done it.

"Sir? I'm an agent of X Corps. I need to test your genome to see if you've been riffing some valuable X Corps property into your wife..."

Published: February 13, 2007 3:46 PM
Sasha Radeta

The inability of people to apply self-ownership to private property rights is primarily responsible for the popularity of socialism.

Published: February 13, 2007 4:10 PM
Scott D

Oh, come now, Sasha. You can't seriously believe that the discovered uses of a pattern of a gene present in nature falls under any reasonable definition of private property. (Keeping in mind, by the way, that it is the uses to which the gene can be put that is patented, not the sequence itself, a common fallacy.)

Argue for free-market copyrights if you want, but please don't try to defend gene patents. They represent quite possibly the worst abuse of our horrible patent system ever.

Published: February 13, 2007 5:01 PM
Sasha Radeta

Oh, come now, Scott D. You can't seriously believe that the "discovered" uses of someone else's body parts or its products do not fall under (the one and only) definition of private property (keeping in mind, by the way, that if you own a certain object, you have a sovereign right to regulate its possible use).

I will always consistently defend private property rights, regardless of political correctness or hyper-sensitivity of general masses (issues in which public generally believes that private property restrictions are causing deaths, while in actuality it is the lack of those property rights that cause lower supply of many necessities).

Before you can claim that restrictions in the use of my blood or saliva are "the worst abuse of our horrible patent system ever" - you have to prove that I don't own my body or its fluids. Since you made no such attempt, I will now finish at this point.

Published: February 13, 2007 6:40 PM
Axel Riemer

Sasha, you are nothing, if not consistent. If an idea can be owned, then whoever own's the idea should be able to regulate(? perhaps a better word here) the application of that idea in whatever way they see fit.

Of course, the idea must have appeal, or it is worthless. The consumer will not buy what he does not want, unless of course forced to (say if I made a drug that caused a painful death, claimed it was a preventative for cancer, and got a government mandate for it. unlikely, of course).

The question of independently occuring ideas is a question of technicality to be first proven, and then decided by a court of law, this being a question of property rights. Obviously two people can have the same idea at the same time, independently. For me, if two people had the same idea at the same time, that would prove it to not be "not obvious", and it shouldn't be patentable. But anyway.

Sasha argues that no one can take any of his body parts from him without his consent for some use. That sounds right. Certainly we don't have mandatory blood donation (yet.. duh duh daaa). Gene patents on uses for genes can't be any more wrong than any other patent on knowledge, say how to construct a gearbox.

Of course, I intensely dislike all patents, etc, but as applied to genes, the patents are no more abusive than any other patent.

This just highlights to me how inefficient the patent system is.

Published: February 13, 2007 9:21 PM
Sasha Radeta

Axel Riemer,

Idea per se (the content of cognition) cannot be owned (there must be a tangibility of an object in order for us to "mix our labor" and create nexus between our self-ownership and property right over such object). So what many people call "ideas" are nothing but pieces of hardware that are valuable due to their content, which can be used as a mean of production.

Therefore, people do own their physical property (including their bodies), and they have a right to determine how their property (if at all) will be used.

Now, the issue at hand is: whether or not we own our physical bodies. If you try to deny the right of people to own their bodies, you automatically deny property rights in general, because it stems directly from self-ownership. On the other hand, if you advocate self-ownership, you must admit that people have a right to decide how their body components will be used. That just highlights how term "patent" is misused and how copyright (even in cases of restrictions in use of someone else’s genes) is derived directly from self-ownership and property rights.

As far as the alleged “inefficiency” of this system goes such claim cannot be supported by neither logic nor economic theory. If we want to enjoy the blessings of capitalism and to provide incentives for new inventions and greater market supply, we cannot make exceptions in which private property rights can be abolished based on “utilitarian” pseudo-arguments (which don’t consider real causes of poverty and market shortages). Dangerous precedents in property rights violations would take us to the slippery slope of socialism.

Published: February 13, 2007 11:16 PM
Sasha Radeta

Although he got the different conclusion from my premises, Axel Riemer was right on the money on may points (pointing out my consistency), including this one:

-----
"Obviously two people can have the same idea at the same time, independently. For me, if two people had the same idea at the same time, that would prove it to not be "not obvious", and it shouldn't be patentable."
------

Absolutely! That's why you could not claim a patent over a fire (as someone here suggested in order to "prove" my position as "absurd") - simply because fire is a natural phenomenon that is easily independently produced by almost anyone. However, there are patents that can be proven to be revolutionary different from anything else produced and if any identical invention takes place, the court could investigate the likelihood of independent discovery or unauthorized replication (as mentioned here before, the dispute between Tesla and Marconi about the invention of radio was controversial, while many other revolutionary Tesla's invention were his works without any doubt - and he had private property rights to regulate their use by others).

Published: February 13, 2007 11:38 PM
David C

.... Sahsa quoted, "While some children are dying, some rich Americans are choking in excess wealth...."
How about "while some children are dying, some Americans are forbidding them from non coercively helping themselves"

.... And he said, "likewise, my refusal to allow someone to use my body or my body's products is not killing anyone - the illnesses are."
Likewise, if we happen to see or observe your body's products and we happen to use that knowledge to make something similar for ourselves, than it's not your property.
.... "The inability of people to apply self-ownership to private property rights is primarily responsible for the popularity of socialism."
I thought the inability to differentiate between rights and control over others free will was.
.... "Oh, come now, ... You can't seriously believe that the "discovered" uses of someone else's body parts or its products do not fall under (the) definition of private property"
Well, I can believe my copy of it doesn't.
.... "I will always consistently defend private property rights, regardless of political correctness or hyper-sensitivity of general masses"
or reguardless of if it's even property? :)

Published: February 13, 2007 11:52 PM
Sasha Radeta

David C,

Some Americans are only forbidding those poor Africans to use their products in ways for which they did not pay for. They only pay for personal use of American medication - and then they decide to wipe their behinds with contractual agreements and to take far more expensive commercial use - for free. That is a simply a theft during a contractual violation... and they should pay for all damages specified by the contract (usually specify that any unauthorized copies will belong to the owner of the original item), plus punitive damages for such pre-meditated unlawful action.

Also, if you accidentally find my body fluid, you are more then welcome to observe it and treat it as a lost property. If you take it - and start analyzing, and using it for commercial purposes, you are committing an unauthorized use of my product (trespass). But even than you did not cause me any injuries and everything is fine. Only when you decide to turn this trespass into something that will produce revenues for you, - you actually caused me a loss of earnings that without your trespass would have belonged to me (if you legally purchased those commercial rights from me).

So we are talking about tort again (trespass against my property (body or its products) resulting in a financial injury). I am not claiming that your unauthorized copy is automatically mine (that is only the case if our contract stipulates such thing). I am only pointing out that any unauthorized use of my property which causes my loss of earnings will be a tort issue.

Published: February 14, 2007 12:16 AM
Peter

Before you can claim that restrictions in the use of my blood or saliva are "the worst abuse of our horrible patent system ever" - you have to prove that I don't own my body or its fluids. Since you made no such attempt, I will now finish at this point.

But Sasha, you're the one saying that: if I invent a new way to use your blood, I own it, not you (according to you), so I get to control what you do with your blood - this goes completely against the idea that you own your body and its fluids!

Published: February 14, 2007 1:25 AM
Sasha Radeta

Things that could be figured out with a simple "non-trespass" observation are not copyrightable.... anyone could reach an independent discovery and there is no controversy there... But that is not the case with genome analysis.

We had a similar discussion about an accidental finding of a lost book - of course that it is perfectly all right for you to use and analyze such book and to try to find the rightful owner (author's info)... But if you turn that trespass into unauthorized replication or commercial use - you are causing me a loss of income and tort (be prepared to pay for publishing rights which you decided to assume). As you know, those commercial rights are very expensive and you cannot take them for free simply because you find a book (and the original owner always has the superior property claim over that item).

You cannot freely obtain something through unauthorized use - that would otherwise cost your dearly.

------

PS

While I'm on these issues, there were other completely nonsensical pseudo-arguments against so-called intellectual property... Such as: what about identical twins and people with the same names ("Joes Smiths" of this world)... Would you ban them from this world?

Insanity and misunderstanding of private property rights in these questions is just horrendous. Of course, each identical twin has an absolute private property right over own body. The fact that they accidentally share the same appearance and DNA is not an issue of "unauthorized use" of anyone's property. So that can never be a controversial issue.
As far as identical personal names go - they can only be observed as a trademark issue if someone changes his name to something distinctively associated by their competitor (usually with artists), creating confusion with customers, and resulting in loss of earnings of the original name holder - we have an issue of liability toward the person who suffered the loss of earnings, as well as fraud issue with those deceived customers. So, "Joe Smiths" can never be an issue (and artists/creators avoid such names in commercial use).

-----

PPS

One more thing,

If AIDS theory is probably incorrect and "African epidemics" is for the most part a psycho-babble...
if pharmaceutical companies loose their markets due to unrestricted replication (quantity supplied causing prices to decrease), they will use incentives to supply real future cures (since the expectations of future prices determine the market supply)...
Anyway.... even without utilitarian arguments, it is easy to prove that opposition to copyright is against private property rights.

Published: February 14, 2007 1:26 AM
Sasha Radeta

Peter said: "But Sasha, you're the one saying that: if I invent a new way to use your blood, I own it, not you (according to you), so I get to control what you do with your blood - this goes completely against the idea that you own your body and its fluids!"

---------

You missed my point. Of course that you own whatever you produced with your own materials, while illegally using my blood - but you still owe me for my loss of earnings (tort issue), because you failed to purchase expensive rights for such use of my body. You would also be responsible for punitives in cases of intentional trespass.

On the other hand, if I donated my blood for a certain purpose stated in contract (blood bank) - but you misused it for completely different purpose, rest assured that our contract would stipulate that any unauthorized products and/or profits they generate will become my property (good ol' copyright).

So it really does not go against "my idea" (o tempora, o mores) that I own my body, including its fluids. You jumped to a wrong conclusion.

Published: February 14, 2007 1:35 AM
Sasha Radeta

Oh, I missed this Peter:

If you mix your labor with my property (my blood for example) - that does not become your property. You can only obtain property rights by mixing your labor with an unclaimed object - not through the act of trespass (mixing your labor with something that's mine).

Published: February 14, 2007 1:48 AM
Peter

Of course that you own whatever you produced with your own materials, while illegally using my blood - but you still owe me for my loss of earnings

This is ridiculous. Who said anything about "illegally" using your blood? I don't even have to have a sample of your blood to think of a new way to use it.

Please tell me you're just trolling.

Published: February 14, 2007 4:38 AM
Scott D

Seriously, I think Sasha has gone off the deep end. We're talking about the human genome. We're talking about chains of nucleotides that are found in every single human being on earth. The fact is that your own, personal DNA is remarkably similar to mine, or anyone else's.

Patenting your gene's functionality is, in fact, a claim upon my own copy of that gene. It is a claim upon everyone's genes. If you are arguing about whatever parts of your own genetic code are unique to you, you should realize that those parts are trivial to the issue.

Assuming property rights in inventions, the only option you might reasonably defend is the patent/copyright of a new, created gene. This is also not what we're discussing.

Trust me, you don't want to go here. This does not strengthen your overall argument.

Published: February 14, 2007 7:51 AM
Sasha Radeta

Peter,

You are obviously trolling. If you don have a sample of my blood or anything else from my body, you would not have my DNA. If you think of a new way of to use my blood, without ever touching anything that is mine (like dreaming about using it for art or fetish) - no one is preventing you! You are free to enjoy in your twisted imagination.

Our topic here is something completely different. Some people assume that they just have a "right" to use my body fluids without my permission, in order to make experiments and produce whatever you want with my property.

----

Scott D,

I am not talking about "property right in inventions" per se. If you take my property and use your labor to create/invent something else with it - that is a trespass. That is not how you can establish the property right.

If you invent something with your own materials (mix your labor with your objects) - but you also use my lost blood in process of production (isolating DNA and experimenting)... You also committed a trespass against my property (blood). You would owe me for my loss of earnings (you failed to pay for commercial use of my property), plus some punitive damages if my blood was stolen.

The fact that my body is remarkably similarly to bodies of my brethren does not mean that I don't own my body and that society can do whatever it wants with it. If you deny the fact that I own my body fluids - you are denying self-ownership (which is the basis for all property rights). Trust me; you don't want to go there.

Published: February 14, 2007 10:54 AM
Sasha Radeta

Scott D:
"We're talking about chains of nucleotides that are found in every single human being on earth. The fact is that your own, personal DNA is remarkably similar to mine, or anyone else's."
---------------------

The fact is that my handcrafted vehicle is in some ways "remarkably similar" to other cars; and materials used to create it are composed of chemical elements commonly found in objects in nature... But that does not mean that you can lawfully just take my car, upgrade it ("pimp it up") and then claim it’s your own property. It also does not imply that you can "borrow it" for free in order to dissect my unique engine and then start its mass-production (your trespass is causing tort, because you didn't pay for the commercial use of my invention and I suffered a massive loss of earnings).

The same analogy goes with human blood or any body part. Regardless of how my DNA is similar to yours - it is distinctive enough to prove if someone messed with my particular property (body fluid). And if I own my body - I have a sovereign right to decide how it can be used. Such property right is in no way "a claim upon everyone's genes," as Scott D tried to imply. It is only a claim upon allowed uses of our own body and its fluids.

Published: February 14, 2007 11:58 AM
iceberg

Sasha,

I would like to better understand how you come to your justification of property rights, i.e., deontological, utilitarian, natural law, etc.

Why I may not fully understand how property rights are just, I still see it as the only equitable solution in regards to tangible items not being able to be set to separate uses without the possibility of conflict.

In this regard I agree to Robert Anton Wilson who wrote "There is one principle (or prejudice) which makes anarchist and libertarian alternatives attractive to me where State Socialism is totally repugnant to my genes-or-imprints. I am committed to the maximization of the freedom of the individual and the minimization of coercion. I do not claim this goal is demanded by some ghostly or metaphysical "Natural Law," but merely that it is the goal that I, personally, have chosen --in the Existentialist sense of choice."

However if it's possible to have simultaneous usage of the good that does not deprive the first party of utility (i.e., Person's fictional hobo taking a nap in Farmer Joe's corn field) there is no compelling proposition to assign property rights to exclude the second party in that regard.

Likewise, in regards to metaphysical property, such as ideas about the arrangement of matter, and as long as you are not contractually bound otherwise, I cannot understand how property rights can be justified.

One may even argue that the justification for the right of self-defense is only allowed in proportion to the violation of property rights, so even if you still want to believe that you can own ideas about nature, you still may not employ a physical defense for a metaphysical property without becoming an aggressor oneself (There goes your plan to shoot me for defacing your ideas of property :-)

Published: February 14, 2007 2:15 PM
greg

SR> ... and how copyright ... is derived directly from self-ownership and property rights.

Too bad you have not been able to derive it.

SR> Also, if you accidentally find my body fluid,...

Please take this over to alt.dorks.gross.

Your whole line of reasoning is ridiculous, as usual. Whether it is "an accident" that it is "lost" or "found" is irrelevant. It is a basic fact of nature. A flake of dead skin that falls off you (dandruff, scurf) is not "your" property any more than is a particle of carbon black released from your car tire or a piece of lint from your shirt. You are making the most absurd contention. Your "property" was abandoned by you in this case. You don't own it. You didn't "loose it." You didn't bother keeping track of it because even someone as cracked as you does not do that.

SR> That's why you could not claim a patent over a fire ... simply because fire is a natural phenomenon that is easily independently produced by almost anyone.

Crockery. To use fire is an idea, just like using any natural resource. All "natural resourses" are "natural phenomena" -- your phrasing is meaningless. If there is a temporal aspect to idea protection, then the first person to think of using it, and doing so, gets to own the application of fire use, according to your system. The identical time discovery/use of an idea is zero in probability. The definition of "same time" is wholly subjective and technically a fiction. The judgement of "how obvious" and idea is, is also entirely subjective; somehow that has no effect on your "slippery slope" concerns. Why someone should own an idea simply because they implemented it at time t has never been explained persuasively.

SR> The fact is that my handcrafted vehicle is in some ways "remarkably similar" to other cars; and materials used to create it are composed of chemical elements commonly found in objects in nature...

"Similarity" is the very correlation problem, since correlation is a similarity index. *Nothing* can be exactly described -- it is a slippery slope. That is what NSK and I told you a long time ago. To take it to the degree you wish makes correlation a meaningless concept. The reason a car is someone's property is because it has certain imperfectly described characteristics (new dents, fading paint, torn nagahide, lost carbon, ....) *and* it was in their control. In any case, the argument is about a specific collection of imperfectly described mass, not about other similar looking collections of mass. In point of fact, two people *could* argue about who owns the AMC Gremlin. Only imperfect physical descriptions followed by imperfect testimonies of control will settle the matter. A perfect decision cannot be guaranteed. But describing a chunk of physical mass and who is controlling it, however difficult in particular cases, isn't the problem here -- your's is still to derive what you have not derived before you even get to that.

Published: February 14, 2007 3:25 PM
Scott D

Sasha:
"The fact is that my handcrafted vehicle is in some ways "remarkably similar" to other cars; and materials used to create it are composed of chemical elements commonly found in objects in nature... But that does not mean that you can lawfully just take my car, upgrade it ("pimp it up") and then claim it’s your own property."

You are still mischaracterizing the argument. No one is the least bit concerned about what property you yourself own and what you do with it. What we are concerned with is your "right" to discover some useful function of your property and then block others from trying to use that same function that their own pieces of property possess. This is what it actually means to patent genes.

Let's say you discover a gene that, under the right conditions, builds a protein that lowers cholesterol. This gene is part of the human genome: everyone has it. By patenting that gene, you prevent anyone else from using it for that purpose. You've essentially established a monopoly on a piece of matter that exists in the cells of every human alive.

Are you getting the picture yet?

Published: February 14, 2007 4:54 PM
Sasha Radeta

Iceberg,

Someone may even argue that if I use your excess wealth - I am actually not depriving you of any utility. But that is simply not true, since my property could be used in any way I want it (it would cost you something to legally obtain it) - and if you do it without my permission, you are violating my property rights.

Now I will go to Greg's psycho-babble points and you will see more controversy in what constitutes property.

----

Greg,

Common law certainly cares about the distinction between "lost," "misplaced," and "abandoned" property. To claim that something is legally "abandoned" - you have to prove that I likely intended to set it where you found it - and that the condition of the thing you found (DNA in question) was so deteriorated that I could not find it valuable and claim it .

I case of the lost DNA - if it can be used, you cannot legally assume that I would not claim it. I will always have superior claim over my lost property than its finder...

You say "To use fire is an idea"... First of all, idea is content of cognition, but you completely missed my point... You cannot patent a wheel or fire, because people can independently discover it, beyond any reasonable doubt. You cannot go to court and claim that someone replicated your particular wheel, violating his terms of use or causing you tort (loss of earnings). On the other hand, inventors such as Nikola Tesla could easily prove whether someone commercially used their products without authorization. Well not to you of course, but to people

When I wrote about "remarkably similar" objects, I placed those quotation marks because that is the phrase used Scott D... You obviously could not figure that out. My point was following: regardless of how similar is my body to your body - I am my own rightful owner. Just because my liver is similar to your liver, it does not mean that you can just take it, upgrade it, and than claim it's now your property. The same goes for my DNA - regardless of how similar it may be to other people's - it is my property and I can decide how it can be used.

Published: February 14, 2007 5:33 PM
Sasha Radeta

Scott D,

You are mischaracterizing the argument... If I discover some useful function of MY OWN property - it is my absolute right to prevent you to use my property in the same way. That's what property is all about.

As far as your genome example goes... the fact that everyone owns molecules and chemical elements that compose our bodies - does not mean that you can assume ownership over my particular body.

If you are capable of independently producing a gene that will cure your illness - go right for it! But you cannot legally purchase my product only for personal use - and than rip-off your contract and start using it commercially. Or you cannot break into my lab, steal that material from me, and state for defense:
"I didn't steal anything, we all have those chemical elements in our bodies - but I just decided to help myself with Sasha's".

Published: February 14, 2007 6:02 PM
Scott D

Sasha,
"If you are capable of independently producing a gene that will cure your illness - go right for it!"

The point is that this is exactly what is prevented when genes are patented. The genes BRCA-1 and BRCA-2, for example, can be analyzed for mutations that cause breast and ovarian cancer. The company Myriad holds the patents on both of those genes and until recently, was able to prevent anyone else from analyzing this gene to discover if a woman has a risk of developing cancer.

It has nothing to do with property at all. This is an phenomenon that exists in nature, just waiting for someone to go and look for it. Claiming property rights in something like this is a nightmarish distortion of libertarian principles. Please, do yourself a favor and drop gene patents altogether from your line of argument.

Published: February 14, 2007 7:06 PM
Sasha Radeta

Scott D,

As you well know from my discussions (and it was Rothbard's position), if you can prove that you discovered something independently, you will not owe any lost earnings to anyone. You never violated any copyright contracts, nor you ever trespassed against someone else's gene material.

But somehow I doubt that you would be capable to produce BRCA-1 and BRCA-2 genes, without actually using them against their owners' approval. I have impression that you advocate free and unrestricted use of someone else's property - regardless of the owner's refusal to allow you such use...

Oh, by the way... the fact that something is a natural phenomenon does not mean that you cannot claim it as a property. Dogs and trees occur in nature- but people own them. Human beings occur in nature - but we own ourselves.

If you discover BRCA-1 and BRCA-2 genes in nature - more power to you.

Published: February 14, 2007 7:21 PM
iceberg

Sascha,

I don't know if you are being intentionally stupid, but nobody here is arguing that we should be allowed to steal a sample of your genes, and for that matter, we are not looking to produce those genes, so your questioned likelihood of such an event is irrelevant to the discussion at hand.

What we are talking about here is when a third party, the so-called patent holder, is using the state to impose coercion on other unrelated parties to stop them from analyzing a patients' gene to identify a certain molecular fingerprint which for example would indicate the presense of breast cancer.

If you argue that the patent holder is in the right, what you are in fact arguing is that the patent holder is the de facto owner of evryone's genes, or at least the molecular chain within that serves as the indicator.

I do not see how one can seriously hold such a position and not be called a socialist for supporting the notion that an individual is not the owner of his own body.

As for your counterexample, of depriving a person of his excessive wealth, you are engaging in sanctimonious theft since you believe that interpersonal utility comparison are in any way meaningful. In any case you misunderstand my example- I stated that if it were possible that B can derive use WITHOUT depriving A of his rightful property ("utility" meaning the all-inclusive bundle of it's possible use), I don't see how any cogent theory of property rights can rightfully exclude B.

In any case I find it interesting how you glossed over my other points, and did not deem to offer a response or defense.

My guess is that you are just trolling the Mises board, rambling off irrelevant strawment that no one is even in fact arguing over. But I would still like to give you the benefit of the doubt, even if that means the yolks on me in the end.

Published: February 14, 2007 8:35 PM
Scott D

BRCA-1 and BRCA-2 are present in nature. They are present in you. They are present in me.

BRCA1

Published: February 14, 2007 8:54 PM
Sasha Radeta

Iceberg,

The fact that you cannot understand simple applications of self-ownership does not mean that I am stupid. This actually illustrates something about your abilities, but I don't want to spend too much time about things that are not our topic. The fact that I glossed over many of your points tells enough about it (I see you rambled about "idea ownership" and some other incoherent nonsense).

My point was following: if we own our bodies - we can regulate use of our own particular body parts and fluids. That does not mean that we claim ownership over other people's genes.

In your "counter-example", just like the unauthorized use of my excess wealth is a trespass - so is the unauthorized use of my body products and DNA. In both cases, the thief is using my property without my permission. I don't care about your "utility" nonsense - if you use my invention to make your replicas, you owe me for the loss of earnings - because such use of my property is expensive. Likewise, if you take my DNA and turn it into commercial use, you are depriving me from earnings that I would receive if you bothered to legally obtain it.

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Scott D,

Everything is present in nature... But if you are able to isolate it, you know I would support your property acquisition.

And just for the sake of this blog's quality, avoid insane notions that we can't own something that is natural.

We certainly can own natural objects - and we can regulate their use by other people. If you find identical unclaimed objects in nature, or if you are able to prove that you independently produced them, then you can also establish your full ownership (and restrict their use if you wish).

Even Greg knows it, so he tried to redefine abandoned property.

Published: February 14, 2007 9:00 PM
Sasha Radeta

Iceberg said:

"However if it's possible to have simultaneous usage of the good that does not deprive the first party of utility (i.e., Person's fictional hobo taking a nap in Farmer Joe's corn field) there is no compelling proposition to assign property rights to exclude the second party in that regard."
-----

You are such a Bolshevik.

If you claim that some hobo should be allowed to take a nap in my fictional corn field - why shouldn't he be allowed to take a nap in my backyard... or in my extra bedroom, which I don‘t use while I sleep... Or why he shouldn’t break into my vacation-house and sleep there (it would not deprive me of any “utility” according to you)

The communists had similar notion of property - and so they reassigned living spaces all around the Russia. They moved in many homeless people into other people's "excess" living spaces. Their idea was similar to yours, but they took it to a greater extreme.

Published: February 14, 2007 9:17 PM
iceberg

My point was following: if we own our bodies - we can regulate use of our own particular body parts and fluids.

Your point is irrelevant, as nobody here is arguing that you cannot regulate the use of your own body parts and fluids, and why you constantly revert back to this point makes me question my sanity.

OK LETS GET THIS STRAIGHT- WE ALL AGREE THAT YOU OWN YOUR BODY AND ANY PRODUCT OF YOUR BODY.

Next,
That does not mean that we claim ownership over other people's genes.

That is also correct- we all can agree that the mere fact that you own your body and its products does not give anyone the right to anyone else's genes.

BUT ALAS THAT IS NOT WHAT THE ARTICLE IN ANY SHAPE OR FORM IS DISCUSSING.

What the article, and hence the topic of this blog post is discussing whether A can rightfully exclude B from the use of B's body or property.

When you are ready to discuss that, please let us all know.

Published: February 14, 2007 9:20 PM
Sasha Radeta

Iceberg,

Person "A" cannot rightfully exclude "B" from the use of B's body or property - BUT if that use involves a trespass against A's property - like using his DNA material, scientific papers, or devices, without his permission - then we have a problem.

Published: February 14, 2007 9:33 PM
iceberg

Oh, and I don't claim that the bolshevik hobo may rightfully impose on the farmer, I simply pose that question if any theory of property rights can tell us that B may never derive any benefit from the property of A, even when his usage is not conflicting with A's usage. I'm ready to be convinced either way.

The corn field I will admit is a poor example, only mentioned because Person is very fond of it.

So lets try another-
May B derive pleasure from the wafting scent of A's freshly baked bread? After all, doesn't A own those odorous molecules? Does that give A the right to enforce his bread-scented molecules' property rights to stop B from being a commie about them?

May B derive benefit from looking at his neighbor's lovely flower garden? Does A have the enforcable right to charge B a fee for such?

In fact, a million examples can be thought of in which B can benefit from A without conflicting with A's property rights in those things that A owns.

Published: February 14, 2007 9:34 PM
Peter

As you well know from my discussions (and it was Rothbard's position), if you can prove that you discovered something independently, you will not owe any lost earnings to anyone.

Rothbard's position, if you really care, was that you could never owe "lost earnings" to anyone, because nobody has a right to "earnings". Your whole line of thought is based on this wholely false and anti-Rothbardian idea of "ownership of value".

Published: February 14, 2007 9:37 PM
Sasha Radeta

Iceberg,

who's talking about subjective "benefits" without conflicting with someone property rights? That's not our issue.

We can try with your other example - if your freshly baked bread is spreading scent onto my property... sure, I can enjoy it without paying you for it. Your odorous molecules were sent into my airspace and into my body. If that smell is bad - I can sue you for nuisance. But if you decide to charge for bread-smelling on your property - you certainly can charge me for it, if I come for that to your establishment....

And you don't have to use flowers as your second example... You can use girls... There are businesses that charge for pleasure of looking at them, while we can also enjoy their beauty for free...

But what's your point??? What does that have to do with property rights and your Bolshevik hobo?

Published: February 14, 2007 9:47 PM
iceberg

Person "A" cannot rightfully exclude "B" from the use of B's body or property - BUT if that use involves a trespass against A's property - like using his DNA material, scientific papers, or devices, without his permission - then we have a problem.

How does B's use of B's genetic material conflict and trespass upon A's property?

Hint: It doesn't.

If you want to argue about contractual duties that B has to A, great, I can agree to disagree with Rothbard's mousetrap copyright.

But can you at least agree that if B does not have any contractual duties to A, than A has no say in what B does with his own property.

AND THAT IS THE POINT HERE- THAT WHERE THERE ARE NO SUCH CONTRACTUAL DUTIES TO THE DISCOVERERS OF CERTAIN MOLECULAR PATTERNS IN THEIR OWN PROPERTIES, TO ENFORCE "PROPERTY RIGHTS" TO STOP OTHERS FROM IDENTIFYING THE SAME GENETIC PATTERNS WITH THEIR OWN PROPERTY IS A FARCE.

Published: February 14, 2007 9:48 PM
Sasha Radeta

Peter,

Read what Rothbard said about common law... I am not claiming that someone has a "right to earnings"... but if your trespass prevents someone from acquiring property (like when your truck in front of someone's garage, preventing that person from going to work and loosing his job) - you cannot simply be responsible for a parking fee. Your tort is greater than that.

Published: February 14, 2007 9:53 PM
Sasha Radeta

Iceberg,

How does B's use of B's genetic material conflict and trespass upon A's property?

It can be done in many different ways... for example, by isolating that genetic material with the use of someone else's stolen technology... or by violating the contract (using someone else's isolated genes as a tool in production, contrary to permitted use).

Again, I am not a fan of patents... but anti-IP crowd here is advocating straight-up communism (if they get ahold of my property they think they can use it in any way they want to).

Published: February 14, 2007 10:04 PM
Sasha Radeta

And we can certainly agree - if you make an independent discovery without unauthorized use of someone else's property - you own it...

And picking up someone's DNA and making clone is not analogous to smelling someone's bread on your property :)

Published: February 14, 2007 10:21 PM
SuperFan99

Patents and copyrights are simply a way to alienate your unalienable right to make use of information in your brain. That is why any argument in their favour is erroneous. End of story.

Published: February 15, 2007 12:00 AM
Sasha Radeta

No SuperFan99, don't be ridiculous. Read Rothbard's arguments for copyrights. Copyright is nothing but regulating the use of your own (physical) objects. Contracts and tort takes care of it. So you have to attack property rights, contracts, or tort system, in order to prove your point.

To sum it up: Iceberg tried to relitivize trespass with that Soviet hobo, but he was unsuccessful. Peter tried to argue that the loss of earnings should not be a part of tort - but he failed to understand that in such case I could "borrow" your property without any authorization and then I could just return it, without compensating you for any financial injuries you sustained as the result of my tort. But even if he does not believe in it - he should agree that I would owe you for this "service"... In case of unauthorized commercial use of an invention - the trespasser should pay for the full ownership rights that he assumed - and such "publishing" rights are expensive.

PS
(When molecules that carry the scent of bread trespass against your property, there is no tort or injury against property... on the other hand, when someone uses your DNA without your authorization, in order to replicate your findings for commerce purposes - there is a financial injury in loss of earnings, since it would cost you some money to legally obtain those rights).

Regards.

Published: February 15, 2007 12:37 AM
SuperFan99

A synonym for "financial injury in loss of earnings" is "free-market competition".
Take your anti-free-market propaganda out of here, you statist propagandist you!

Published: February 15, 2007 1:12 AM
Sasha Radeta

SuperFan99,

A synonym for "financial injury" is tort. If my trespass against your property ends up costing you money - that has nothing to do with a "free market competition".

"Post an intelligent and civil comment."

Published: February 15, 2007 1:23 AM
SuperFan99

Since no idea is property, there is no tresspass. The only loss of earning occuring is that due to competition.

Published: February 15, 2007 1:32 AM
Sasha Radeta

I never claimed that idea per se is property. But hardware containing some idea (like a book manuscrip) is property - and its owner can regulate its use.

If you "borrow" someone's property without his permission, you should pay for such use. If you assume full ownership of some rented property (by using it for commercial purposes), you must pay for such full use (that's what legal publishers do)...

So you are against copyright... You want to pay for personal use of someone's product (agree to such contract), but then you would like to "upgrade" your deal and start acting as an illegal publisher. And you call such trespass a "free market," because you confuse the freedom of trade with your freedom of theft.

Published: February 15, 2007 1:42 AM
SuperFan99

Whether I acquire an idea completely independantly, or from a physical manifestation of your idea, doesnt change the fact that I now have that idea in my brain and I have an unalienable right to use it in a commercial venture if I want to. Are you saying I had to alienate this unalienable right when I acquired an instantiation of your idea?

Published: February 15, 2007 1:58 AM
Sasha Radeta

I am saying that you can keep in your brain whatever you want... But if you violate your terms of use that prevent you from commercially using my product, including reproduction - you are responsible for breach of contract - and you will pay specified damages, usually in the amount of unauthorized copies and/or profits they generate.

Also, if you use my property without my authorization (trespass) and as a result of your unlawful actions I sustain financial injury (if you take for free what would in legal circumstances cost you a lot of money, like publishing rights) - you will have to pay for my loss.

It is as simple as that... No "idea ownership", "alianable-nonalianable" mambo-jumbo.

Published: February 15, 2007 2:08 AM
SuperFan99

So the terms of use can include alienating the unalienable right to use information in your brain, then?
There's no mumbo-jumbo here. Just go back to school if you don't understand something.

Published: February 15, 2007 2:37 AM
Sasha Radeta

So the real issue here is following:

Can someone "patent" or actually copyright (in a Rothbardian world) actual isolated gene - if it is contained in out own bodies... It's like asking can someone copyright his book, even though we own the same types of paper and ink in our house. Such copyright would now violate your ownership over your materials - it would just restrict your use of someone else's property... Or we can think of an example in which a sculptor does not want you to use his sculpture to reproduce it with identical material that grows on your property. If a company is able to isolate a particular gene, they should be able to dictate how their papers and materials should be used... that's why they invested millions in such discovery.

On the other hand, I have nothing against independent discoveries. A priori prevention of identical discoveries in genetics is indeed outrageous... But so is any other patent, to the extent in which it goes beyond copyright. That's why Rothbard advocated free-market copyrights.

Published: February 15, 2007 2:43 AM
Sasha Radeta

SuperFan99,
You confuse yourself with all that crap... and you didn't learn it at school, but on internet blogs from some pseudo-philosophers.

Terms of use can prevent you from using information in your brain... just like a law can prevent you from using information on how to steal, kill someone...

Copyrights prevent you from making unauthorized copies. It is you who voluntarily agree to these conditions - and no one has to alienate anything out of your brain. You simply rent someone else's property for personal use and you agree that you will refrain from any other, unauthorized, uses. It is as simple as that.

Published: February 15, 2007 2:52 AM
SuperFan99

Why should I care that a sculptor doesn't want me to reproduce his sculpture?
I am a free man and I will reproduce at will.

Published: February 15, 2007 2:52 AM
Sasha Radeta

Using the information in your brain is not your absolute "right" - if it involves a breach of contract or violation of someone else's property. That's something you skipped in school.

Published: February 15, 2007 2:56 AM
SuperFan99

Don't you believe in unalienable rights?
So can I voluntarily sell myself into slavery?

Published: February 15, 2007 2:57 AM
Sasha Radeta

If you voluntarily signed a contract that you will not reproduce someone's original work - and if you purchased product only for a personal use, you cannot lawfully decide to upgrade to more expensive, publishing and reproduction rights... That would constitute a trespass (definition of unauthorized use of someone's property), plus you are changing your terms of exchange - and you are not free to steal at will.

If contracts could be violated like that - markets would disappear... That's the ultimate commie dream.

Published: February 15, 2007 3:01 AM
SuperFan99

Unalienable.

Published: February 15, 2007 3:03 AM
Sasha Radeta

I certainly believe in unalianable rights.

You are not selling yourself into slavery - by agreeing to refrain from some action against the letter of your contract (and terms of exchange, ie. price you paid).

Slavery is when you are forced to work - not when you agree that certain property does not belong to you - and you must agree to owner's terms of use.

Published: February 15, 2007 3:05 AM
SuperFan99

Slavery is also when you are forced to not work.

Published: February 15, 2007 3:08 AM
SuperFan99

What does not belong to me? The idea of how something is made? It's in my brain, therefore it belongs to me. It matters not how it was acquired. I can make any use of said idea and can not stop you from doing the same.

Published: February 15, 2007 3:11 AM
Sasha Radeta

Wrong. But in copyright - no one is forcing you accept those terms of use.

Anyway, if you are forced not to steal from someone - that is not a slavery. You cannot violate your voluntary contracts by changing terms of use (total price you pay)...

Published: February 15, 2007 3:12 AM
Sasha Radeta

Someone else's property that you only rent does not belong to you. And if you contractually agree not to use that property for reproduction or some commercial purposes - that is your law. You agreed to that price voluntarily and any "upgrade" would be nothing about that.

Published: February 15, 2007 3:15 AM
SuperFan99

I understand that "You cannot violate your voluntary contracts by changing terms of use".
I'm just saying that there can be no valid term of use that restricts my right to use information in my brain, just like there can be no valid term of use that makes me someone's slave.

Published: February 15, 2007 3:16 AM
Sasha Radeta

nothing but a theft... when you agree on one set of terms in exchange for a product use, but then you turn your back and say: I'm free to do whatever I want now...

Published: February 15, 2007 3:17 AM
SuperFan99

"And if you contractually agree not to use that property for reproduction or some commercial purposes - that is your law."

I can not contractually, even voluntarily, alienate an unalienable right of mine, which is that of using information in my brain.

Published: February 15, 2007 3:19 AM
Sasha Radeta

Isn't the act of stealing and killing also using information in your brain? You cannot lawfully use such information, if it involves a breach of contract, tort, or a criminal act.

Published: February 15, 2007 3:20 AM
Sasha Radeta

SuperFan99,

Using any kind of information - to act in any way you want is not a "right"

You cannot sell yoursef to slavery, becuase someone else cannot take control over your body if you refuse to work.... But you can certainly agree to not act in certain ways, not to cross someone's property lines, and not to use someone's product in ways for which you did not pay for.

Published: February 15, 2007 3:24 AM
SuperFan99

The acts of stealing and killing are physical events. They are illegal because they curtail someone else's freedom, not because they were using information in my brain.

As for the contract, again, there can be no valid contract in existence that would restrict one's right to use information in his brain, the same way that there can be no valid contract in existence that has someone become a slave. Hence, no contract, no breach.

Published: February 15, 2007 3:28 AM
Sasha Radeta

The act of unauthorized reproduction is also "physical event". They are illegal because you are using someone else's products in a way for which you don't have owner's authorization.

Every contract is restricting one's right to use information in his brain. The contract which specifies that I need to deliver some merchandise tomorrow is restricting my information which would allow me to run-away with advance payment and not deliver my merchandise.

Your definition of slavery is wrong, hence your entire argument is wrong. It is not slavery when you agree not to use someone's product in ways for which you didn't pay for.

Published: February 15, 2007 3:33 AM
Sasha Radeta

Also, note that copyright is not preventing you from actually using your information - it just specifies that unauthorized copies would become the original author's property. You agree to those terms, in exchange for your personal use of his property...

Fair trade. Voluntary exchange.

Published: February 15, 2007 3:39 AM
SuperFan99

"They are illegal because you are using someone else's products in a way for which you don't have owner's authorization."
So you're saying I'm curtailing his freedom, is that it?

Which freedome is it, exactly, that I'm curtailing? His freedom to curtail my freedom to make use of information in my brain?

Your examples are getting more bizarre and irrelevant every passing minute. Go to bed.

Published: February 15, 2007 3:40 AM
Sasha Radeta

Listen to your own advice and go to bed...

When you are using someone's product without his authorization - you are trespassing. Check the definition of trespass. Anyway, such trespass can cause financial injury to that owner and you would be responsible for it.

Published: February 15, 2007 3:42 AM
SuperFan99

"Also, note that copyright is not preventing you from actually using your information - it just specifies that unauthorized copies would become the original author's property."

So, I don't own the product of my labor. And this isn't slavery? Or communism?

Published: February 15, 2007 3:43 AM
Sasha Radeta

Of course that you don't have to own objects produced by your labor... escpecially if you don't own means of production (what are you Carl Marx)...

Anyway - if you sold any unauthorized copies in exchange for personal use of someone's property - you don't own those copies anymore.

Published: February 15, 2007 3:47 AM
SuperFan99

I own the products of my labor unless I sell those products or "sell my labor directly".
Quite a long way from having the product of my labor "become the original author's property."
The difference? The latter is an example of slavery.

"if you sold any unauthorized copies in exchange for personal use of someone's property - you don't own those copies anymore."
Also applies to authorized copies!

Published: February 15, 2007 3:54 AM
Sasha Radeta

If you voluntarily decided to give your money and any future (unauthorized in this case) replicas in exchange for personal use of someone's property - you don't own those copies anymore.

You cannot call this "slavery". It does not involve your enslavement in any way.

Also, refraining from trespass (unauthorized use) against someone's property is also not enslavement.

Published: February 15, 2007 4:00 AM
Sasha Radeta

What do you mean by "product of your labor"? You don't have to own objects produced by your labor - if you contractually sold them.

PS
It is not our topic, but I have to react to nonsense that you must own "products of your labor:
You also don't own objects produced by your labor, if you don't own other means of production used in creation of those objects (you mix your labor with someone else's property)

Published: February 15, 2007 4:05 AM
SuperFan99

"Also, refraining from trespass (unauthorized use) against someone's property..."

What is his property? My copy of his product? Clearly not, since I bought the copy I have.
Is the idea of the product his property then? I simply don't think ideas can be property.
All the yet unsold copies of his product, then. Sure, I'd agree with that. He can authorize or unauthorize any use he wants out of those copies.
What about my copy? I can resell or even burn it without his authorization.
The idea that appeared in my brain when observing the copy of his product that I had? That's mine. Just as it would be if I had acquired that idea totally indepedantly. I have the right to use this idea in any way I see fit. I don't need any authorization from anyone.

Published: February 15, 2007 4:14 AM
Sasha Radeta

I'll try it one more time... If you contractually agree that any copies of my product will become my property - you cannot claim them as your property! You did not buy ownership of the copy you have - I only rented it to you for specified, personal use.

I never claimed that ideas can be property and you resort to this ridiculous notion just to waste my time.

And what about "your copy"???? If our contract clearly state that this copy belongs to me (it was part of our exchange deal) - it is not your property. You cannot resell it - but I'll let you burn it. You can keep in your brain whatever you want - but you sold the property rights in those replicas in order to obtain my product in the first place.

If you don't like copyright agreements or terms of use.... don't agree with them and stay away from my product.

Published: February 15, 2007 4:23 AM
SuperFan99

Unalienable.

Published: February 15, 2007 4:25 AM
Sasha Radeta

-------
When I said earlier:
"They are illegal because you are using someone else's products in a way for which you don't have owner's authorization."

SuperFan99 said:
"Which freedome is it, exactly, that I'm curtailing?"
-------

I should have stopped there! Anyone who does not see anything wrong with an act of trespass does not deserve so much space. He simply thinks that you can use someone's property regardless of owner's wishes - and that is his idea of "freedom".

He seems to believe that someone enslaves him when he voluntarily agrees to transfer property rights of any future replicas to the original creator. He thinks that such contract "forces" you not to work - and that is "slavery"...
O tempora, o mores!

Published: February 15, 2007 4:28 AM
SuperFan99

There's no tresspass without property, and you haven't defined what exactly is property here.

Don't switch this around to imply that I don't believe in any property. I know your tactics, you commie propagandist you!

Published: February 15, 2007 4:36 AM
Sasha Radeta

I hope you're just drunk...

For example - a book manuscript is my property. If you trespass by stealing my book and then use it to replicate it, you are causing tort (financial injury).

In our hypothetical example I agreed to allow you the personal use of my property (rent) - in exchange for some money and my ownership rights over any future replicas produced by you...

So we have property in both scenario - it's just that you are against it... you commie propagandist you!

Published: February 15, 2007 4:43 AM
iceberg

Okay, I officially give up... some annoying nerd is clearly addled, drunk or both and unwilling to confront arguments in an honest manner.

All this talk of contracts and property is frankly ridiculous, unless you are addled enough to believe that the first person who extracts a monopoly agreement with the state can rightfully control the usage of all physical matter in the world to stop others from the use of their own properties, and to which they have no contractual duties with regards to the use thereof.

I would love to be convinced how one is automatically party to a "no copy" contract and in violation thereof, for example when someone simply observes another person using a piece of flint to start a fire, and for them to now use that knowledge of the physical universe without the permission of the observed person is violating their "contract" when using their own acquired pieces of flint and using that to start fires.

It's also funny that sculpture works were brought up; as Michelangelo pointed out, the sculpture was already in existence before he started the work, and for somebody else to "find" the same sculpture within his own stone would not be taking anything from the first sculptor.

Published: February 15, 2007 10:01 AM
N. Joseph Potts

Crichton's remark about the "underfunded and understaffed" Patent Office gives the unfortunate impression that he feels said office should receive greater funding and more staff, which I hope is incorrect.

I think the statement might have carried far better implications had it been crafted from the other side of the problem: viz, that the Patent Office was greatly overempowered and overactive.

This would give the impression that he felt its powers should be greatly reduced, or perhaps that the institution and the legal principles underlying it should be abolished altogether.

Published: February 15, 2007 10:25 AM
Scott D

Yeah, it's pretty pointless. Sasha will not budge an inch on this, even to the point of being self-contradictory. I'll admit that I couldn't resist when I saw how obviously flawed it is to argue for gene patents. Just one parting shot before I return to less maddeningly frustrating activities:

"It's like asking can someone copyright his book, even though we own the same types of paper and ink in our house."

No, it's like having billions of books scattered around inside everyone's homes that have just always existed. One person opens his book and reads chapter 6, which gives him an idea for how to build a new type of mousetrap. That individual then applies for a patent to prevent everyone else, not only from building that mousetrap, but from utilizing anything they might learn from chapter 6.

It's madness.

Published: February 15, 2007 10:40 AM
SuperFan99

Don't despair, iceberg.
Sasha does seem to be emotionaly attached to her position, but what can you do? Women are more emotional and less logical. It might even be that time of month... I think she means well, though, bless her heart...

Published: February 15, 2007 10:44 AM
Scott D

"Crichton's remark about the "underfunded and understaffed" Patent Office gives the unfortunate impression that he feels said office should receive greater funding and more staff, which I hope is incorrect."

At least he recognizes that there is a problem. He just doesn't yet realize that the problem is that all patents are legal positivism. They are arbitrary, coercive, and probably serve the opposite of their stated purpose, to promote innovation.

Published: February 15, 2007 10:50 AM
SuperFan99

You're right Scott. Crichton might simply have meant in this sentence that the Patent Office was underfunded and understaffed for its stated purpose, without making a judgement of value on the principles underlying that purpose.

Published: February 15, 2007 11:05 AM
Sasha Radeta

SuperFan99, you are such a boring, self-hating, communist woman. I don't even understand how can show-up here after that fiasco with your definition of slavery.

----

Scott D,

Your analogy is flawed. Although people have a certain gene inside of them, they don't have a clue how it looks like or how it could be isolated. In other words, people do not have a "book" in their house which will help them to "build the mouse trap" in your analogy. People who own the book and that object can dictate what they demand from you in exchange for their findings.

---

Iceberg,

I am also against state-granted patent monopolies, but I will support any derivation of private property rights, including copyright contracts.

By the way, sculpture analogy was the closest to or gene example, since you can argue that your piece of rock could contain a sculpture identical to mine. But if I give you my sculpture under a condition that it will not be used as a model of replication or for commercial purposes - your replication would constitute a breach of contract. Even if we didn't have a contract, but you "borrowed" my sculpture without asking and than replicate it, your trespass is causing loss of revenue to me (the only legal way to obtain such replication rights is by purchasing it from me, which you tried to avoid)...

Published: February 15, 2007 2:48 PM
SuperFan99

The only people who can dictate are dictators.

Published: February 15, 2007 2:57 PM
Sasha Radeta

I can be a dictator on my own property. If you don't like terms by which I only allow you to use my property - don't accept those terms, and don't do a market transaction with me. If you trespass against my property - we have tort for that.

Regards.

Published: February 15, 2007 9:32 PM
Fred Mann

Sasha,
If I may, allow me to repost a question I asked you on an earlier blog. You never answered, but I think it would help illuminate your position...

Sasha writes:
"products that can easily be discovered independently - cannot be copyrighted. Why? Well, how can you prove that someone copied your wheel??? Wheel can be discovered independently and no court would ever rule that someone copied my particular wheel. On the other hand - is it so difficult to prove whether or not I copied Hoppe's book, word-for-word?"

With this, you seem to be saying that copying someone's ideas is always wrong, but we can't prosecute all copying because sometimes it is reasonable to believe that the "copier" actually came up with the idea independently. In other words, it's just a feasibility/practicality issue. Well, what if I got you on tape saying "I'm going to copy Fred's wheel device!"? Then can I sue you for damages when you use the wheel commercially? After all, you admitted on tape to copying my idea.
Or is it just that ideas are suddenly imbued with the quality of "ownability" when they reach a certain level of complexity? If so, how does this process work?

Published: February 18, 2007 7:52 AM
Sasha Radeta

I believe I answered to that question like 1,000 times or so (I mean most of my postings, I repeated the following message). Forgive me if it seemed I was avoiding your questions, I just try not to insult anyone's intelligence:

It is up to courts to decide whether someone violated the contract prohibiting commercial use or not. If someone admits contract violation - on tape and in front of witnesses - what else do you need??? How hard would it be for court to find a breach of contract in such case??? Use your own brain.

If the accused side is not admitting his fault, than the court would look at the circumstances of the case: is there a contract between sides in dispute or we have a tort case (unauthorized use, in which case the court should investigate whether the defendant had a contact with plaintiff’s property)..., what's the likelihood of independent discovery (the complexity of item in questions plays a big role there), et cetera.

Published: February 18, 2007 8:10 AM
Sasha Radeta

In other words: please stop with that nonsense about "idea ownability"... I never claimed such nonsense. It was anti-IP charlatans who tried to impute such nonsensical quasi-argument. Copyright is all about property rights over physical property, which use could be restricted with free-market contracts and tort system.

Even those individuals who still try to revive the deceased anti-IP propaganda on this blog are no longer mentioning "idea-ownership" nonsense. Now they try to convince us that "open-source" is so great (bunch of communists looking for product errors for free) but businesses are too stupid to realize this (so they pay big money to greedy experts to do the job)..., that Apple is more successful than Microsoft...., that the success of Bit Torrent proves that he production of DVDs people rip-off for free would thrive (they try to deny the law of supply)..., they think that book authors could earn money by offering the technical support for their paperbacks..., etc.

Go with the flow Fred. It’s time for you to switch the arguments, too.

Published: February 18, 2007 8:28 AM
Scott D

Okay, I swore off this thread already, but since this board hasn't seen much action this weekend:

So let's say biotech company A isolates a gene that does X. A records those findings and makes them available under conditional license as you have outlined.

Biotech company B finds out that A has discovered a gene that does X and goes to work trying to figure out which one it is. Keeping in mind that the entire human genome is already mapped and publicly available, I'd say B has a pretty good chance of succeeding. Would your system allow B to keep its independent discovery?

Published: February 18, 2007 10:46 AM
Sasha Radeta

If the court concurs with your inconclusive "I'd say B has a pretty good chance of succeeding," than it would allow B to keep its independent discovery. However, if a mere mention of a gene's function is not sufficient for a discovery of completely unknown gene (plus as we know, scientist often find a "new" gene but they are uncertain of its true function), firm B would keep its "discovery" - but it would have to pay for the commercial rights like any other licensed party. Also, bear in mind that court would take into consideration the likelihood that your firm B obtained firm A's materials - and the documentation of entire research would be required in order to evaluate the allegation of wrongdoing.

Published: February 18, 2007 1:32 PM
Sasha Radeta

And there is no "my system" in this discussion. We're just discussing how contract and tort law could apply to this particular situation. As Fred quoted me, when it comes to book copyright, things are easy to resolve - is it so difficult to prove whether or not I copied Hoppe's book, word-for-word? On the other hand, the company that knowingly starts a project in which it looks for some already discovered gene should be aware that any identical findings in some unique discovery could serve as a material trace of unauthorized copying, unless they have a valid documentation that would demonstrate otherwise.

Published: February 18, 2007 1:50 PM
Fred Mann

"...please stop with that nonsense about 'idea ownability'... I never claimed such nonsense."

Of course you DID claim idea ownability in earlier blogs ( http://blog.mises.org/mt/comments?entry_id=6055 ):

"...ideas can be owned when they are turned into something tangible and physical."

Here, you are laying out a condition where ideas can be owned. But bottom line, this is still a claim of idea ownership. That is, you are owning the idea itself, under a certain condition. That is what that sentence means. So you ARE contradicting yourself.
You continue. ..

"The book's 'content' is nothing but patterns of letters in a book. So we are talking about physical characteristics."

Now, a "pattern" can be either physical or non-physical. Perhaps this is the source of your confusion. We can have a physical pattern, like a sewing pattern used to trace out lines on fabric. Or we can have non-physical patterns like "circles". In the case of "circles" we are talking about an IDEA and not a physical thing. If I drive around in a circle in a parking lot, that circle is not a physical thing. It is a description of a path. It is an idea. When I am done driving in a circle, there is no physical circle to be found.
Next, let me point out that your use of the term "physical characteristics" in the next sentence is also misleading. You seem to be implying that you are talking about something that physically exists (i.e. "content"). But a "physical characteristic" is not the same thing as a physically existing thing. A characteristic is always an idea (always non-physical). To put it another way, no physical thing IS a characteristic. I can have the "physical characteristic" of being tall, but "tall" is an idea, or concept, and is not something that can be owned. Are you confused or intentionally misleading?
Maybe you are confused because a specific physical object can have both physical and non-physical characteristics. For example, a book can be both physically heavy, and boring. "Heavy" describes one of the book's physical characteristics, whereas "boring" describes a non-physical characteristic. But the CHARACTERISTICS THEMSELVES are just ideas and can't be owned.

One of the attributes of a physical thing is that it has a specific location at any given time. For example, your physical book can not be both in your library and my library at the same time. So when you say, "The owner of that book can contractually prohibit the reproduction of these physical characteristics of his product", you must really be referring to the reproduction of IDEAS, and not any specific physical thing. SPECIFIC physical things can not actually be reproduced -- i.e. there can not be two or more of the exact same physical item -- only degrees of resemblence can exist in the physical world. Again, specific physical things (which CAN be owned) exist in a specific place at a specific time, unlike ideas, which are non-physical and CAN be truly copied (i.e. the exact same idea CAN exist in multiple minds at the same time).

"Copyright is all about property rights over physical property,"

Nope. See above.

Published: February 18, 2007 11:44 PM
Sasha Radeta

Fed,

You just confirmed my statement (in a somewhat psychotic way). I never claimed that ideas per se can be owned. I only said that you can own physical property that "contains" something we call "idea", expressed in some physical pattern, like writing. Only when you turn your idea (the content of cognition) into something physical (physical pattern like writing) - than it can be owned. And if you own some book - you can allow someone to use it, under specific condition. You have a property right to prevent its replication.

So copyright is not about "preventing ideas to exist in multiple minds". It is not about driving in car in "circles" (I have no idea what's wrong with you my friend). I said it in this thread: you can keep in your brain whatever you want, but if you start reproducing my property against the word of our contract - it's a contractual breach... Or if we don't have a contract, but you "borrowed" my property without my authorization and reproduced it - you committed a trespass that resulted in my financial injury.

PS

Oh, by the way, term "physical characteristic" is not misleading. You're obviously clueless about the definition of "characteristic" and how it is used in science. But honestly, I don't care. Above you have my response regarding copyright.

Published: February 19, 2007 10:13 AM
Fred Mann

When you claim to have "copyrights" on a book, you are certainly claiming to own something above and beyond the physical book (paper and ink).
What you are claiming to own, in the case of a book, is a set of symbols. That is, you are claiming to own a particular arrangement of letters. This is NOT, by any stretch of the imagination, physical property. A "combination", "arrangement", "sequence", call it what you like, is not a physical thing. Period. So again, your statement "Copyright is all about property rights over physical property", is just false on the face of it.
Furthermore, symbols (or sets of symbols) are not scarce/rivalrous, hence they can not be owned. Anyone and everyone can have the EXACT same set of symbols, without dimishing the supply of that set of symbols, or altering the quality of the already-existing sets of symbols. And since these sets of symbols can not be owned, they can not be sold.
So, with respect to your free-market copyright scheme, you can not place terms-of-use restrictions on how that set of symbols can be used, becuase you never owned the set of symbols to begin with.
The End?

Published: February 20, 2007 4:46 AM
Sasha Radeta

When I claim to have "copyrights" on a book, I am certainly claiming to own only the physical book (paper and ink).

Because when I own a book that has a particular set of symbols - I can contractually prevent you from copying that arrangement (because those are the terms of use of my book and its content... if you don't like it, don't accept it).

Also, my specific set of symbols can also be used as an evidence of unauthorized use in case that someone trespasses against my physical property. Like I said before - if my copycat book contains the set of symbols that is identical to Dr. Hoppe's work - it is a clear evidence that I trespassed against his physical property. Nothing more than that!

If these simple points are not clear to you, than it's really the end.

Published: February 20, 2007 6:29 PM
Fred Mann

A set of symbols does not exist in the physical world. Your PARTICULAR printed out copy of that set of symbols IS a physical thing (book). Physical things have the property of existing in a particular location (among other things). Sets of symbols do NOT have this quality, and are NOT physical. Nor are they scarce.
You can not have property rights in non-physical non-scarce things, so you can not create terms of use with respect to these things.

Published: February 20, 2007 7:35 PM
Sasha Radeta

"A set of symbols does not exist in physical world"??!!?

What the...

Do you actually read what you write!? A set of symbols DOES exist in physical world! We're talking about the physical (ink) characters that exist on a physical object (book). ANYWAY... You can philosophize about "material, non-scarce" nonsense all you want, but you were unable to deny my two basic points:

- If you are the owner of a book (physical object), you can contractually restrict someone's use of it. Your contract can (and would) prohibit its replication, or else you could decline to allow its use.
- If people outside of your contracts replicate your book, the presence of identical characters in their replica would be the evidence of their trespass. Any unauthorized copies would constitute a tort of financial injury.

Unfortunately for you, I never claimed that I could have property right over non-physical things. All your efforts in that direction can only produce your sweat. Again, if I have property rights over my book - I can direct its use in any way I want. That includes prohibiting its commercial use, including its replication. Also, if I can prove that someone else replicated my book without my authorization (and I can prove this based on its unique physical characteristics) - then we have a tort case.

That's all.

Published: February 20, 2007 8:43 PM
Fred Mann

"A set of symbols does not exist in physical world"??!!?

What the..."

I could have been clearer, but I figured you would have gotten the gist from my earlier posts.
Anyway, symbols can have BOTH a physical and non-physical existence. You are trying to claim ownership of the non-physical symbols as well as the physical symbols. You can't do that.

Please try to follow this, it's not that complicated. If you print the letter "X" on a piece of paper, an "X" now physically exists in the form of ink on paper. So far so good? You CAN own that particular instantiation of the letter X. In this case, you are owning ink on paper. But what you can NOT own are "Xs" in general. That is, you do not own the IDEA of the letter X. But rest assured, the IDEA of the letter "X" certainly exists as well. The idea preceded and "gave birth to" (if you will) the existence of the physical "X" on paper. But that idea still exists INDEPENDENT of your physical copy of the letter X. We know this is true, because if you destroy your physical copy of the letter X, you do not destroy the IDEA of "X". Ideas are like molds -- they can be used to create an infinite number of physical Xs. Furthermore, since ideas are not physical, and they are not scarce, they are not ownable. Whether the idea in question is simple or complex has no bearing on this.
Now plug this claification into my previous post.

Published: February 20, 2007 10:58 PM
Sasha Radeta

Fred,

I didn't say that you were not clear. I just wondered: "what the..." when you stated that physical patterns, such as letters, do not exist in physical world. Although I understand your attempt (you are trying with all your forces to prove something I never claim) - your statement still sounds insane. So once again: A set of symbols DOES exist in physical world.

I never claimed that a person "owns" a symbol "X" written on a piece of paper. I only said that a person can own that paper in its physical entirety (paper and its ink content). NOW - if I stole your paper and replicated it without your permission, you would not be able to prove this by pointing out to my replica. Why? Because you didn't invent this symbol! It is universal and easily, independently constructed even by a child.

On the other hand, if I copy some unique and complex physical (ink) features of dr. Hoppe's work, he will prove beyond any doubt that I used his work without any authorization. Or if we had an agreement that allowed only my personal use, he would be able to prove that I breached that contract.

In other words, Dr. Hoppe would never claim that he "owns" an idea or concept, as you try to impute. He is a smart man. He would only claim his ownership over his book - and the unique physical features of his work would serve as the evidence of my trespass.

Now plug this clarification into my previous post.

Published: February 21, 2007 12:08 AM
Fred Mann

"So once again: A set of symbols DOES exist in physical world."

Yeah, I know, because I literally JUST finished saying that! To quote me from my very last post " ... symbols can have BOTH a physical and non-physical existence." Not a strong reader .....

"I never claimed that a person "owns" a symbol "X" written on a piece of paper. "

Is it that..
(A) you don't understand that this is an illustrative hypothetical example, or...
(B) are you saying that you never claimed that you own something above and beyond the physical ink and paper?

If (A) ... well, that's what it is.
If (B) ... You certainly never said this in so many words, but your entire copyright scheme assumes this. It depends on it. And this is what I'm trying to show you.
The rest of your post deals with whether or not one can prove the origin of a particular set of symbols, and thus prove a violation of your terms-of-use. But this is completely irrelevant. As I have shown, you are attempting to place terms-of-use restrictions over something YOU DON'T OWN! Therefore, proving that these terms were violated is pointless.
I can't post any more right now. But I suggest you reread my last post(s). If it helps, substitute a unique series of symbols for "X" .... say, "XU54GF9T43R" .

Published: February 21, 2007 2:35 AM
Sasha Radeta

Fred, maybe you think I'm not a strong reader, but you clearly stated: ""A set of symbols does not exist in physical world"...

That's a total nonsense, and that's the end of it. If you now claim that we have symbols in both physical and "spiritual" world - that is even worse example of your illogical ramblings. Symbols (written, engraved, whatever), represent nothing more than physical features of some physical property.

I NEVER claimed that you own something above and beyond the physical ink and paper. And if you own this ink and paper in their entirety - you will be able to create contractual terms of use that will prevent commercial use of your physical property. If our contract prohibits my replication of your book - you will be able bind me to that agreement! There is nothing I can do about it! In order to obtain personal use of your product, I agree not to use it in replication activities.

To repeat again, and again:
- You don't have to claim ownership over a "symbol" - you own your book in its entirety and before you allow my use, you cam decide to prohibit me from ever putting you book into copy machine or to prevent me form using your book for other types of replication. You own the book and you can stipulate your conditions in any way you want.
- Since you own paper and ink it contains, you are able to restrict its use in any way you want - and if I don't like it, I don't have to be your customer. The end.

Published: February 21, 2007 11:53 AM
Fred Mann

"If you now claim that we have symbols in both physical and "spiritual" world - that is even worse example of your illogical ramblings. "

I'm talking about ideas. Ideas are not physical things. Right? If we talk about ideas being non-physical and/or non-scarce, is this mumbo-jumbo? If you think so, then YOU have gone off the deep end.

Let's take an example. You write "I like purple unicorns" on a piece of paper. You sell that paper to me. I read it and memorize it. Now, the sentence "I like purple unicorns" exists as an idea in my brain AND as a written sentence on a piece of paper.

Do you agree so far? If not, I can't proceed any further yet.

Published: February 22, 2007 2:04 AM
Sasha Radeta

Fred,

Unfortunately for you, I am not talking about ideas that are not "fixed" into some tangible, “ownable” property. Same idea can exist simultaneously in many different minds, as well as many different hardwires. SO WHAT? That has nothing to do with copyright. Copyright is based on certain restrictions in use of PHYSICAL, TANGIBLE, unique objects.

As far as your example goes, it is wrong right from the start! You just demonstrated your lack of understanding of this subject. First of all, the expression "I like purple unicorns" could not be copyrighted. Such statement can be independently produced by many different people and I would never be able to prove that someone replicated my particular paper (against my will).

Second thing: I would never "sell" my original idea to you. I would only allow you certain set of uses of my paper, while prohibiting others. In order to use my piece of paper, you would contractually obligate yourself not to replicate my paper. In cases of contractual breach, our contract would provide specified damages that would become my property, including any unauthorized copies and profits they generate.

In cases of "third party" trespasses against my paper, a tort system would compensate me (for financial injuries) if unwanted replication of my work takes place.

So, what did you want to say... please, continue.
: ))

Published: February 22, 2007 10:56 AM
Fred Mann

In this example, I haven't even mentioned your scheme yet. Why don't you just read and respond to what I wrote instead of reading something into it and responding to what you think I might say in the future?
But anyway ...
If it makes you happy, let's revise the sentence to "I like purple unicorns, diet sprite, and the number 363." Now we have a unique sentence that could be traced to a particular origin. Okay, great ...
So, you write this sentence on a piece of paper and sell it to me with terms-of-use restrictions. Presumably, your terms of use would not prevent me from reading it and memorizing it ... so that's what I do.
Now, the sentence "I like purple unicorns, diet sprite, and the number 363" exists as an idea in my brain AND as a written sentence on a piece of paper. That is, it now exists in a physical (paper and ink) AND non-physical (idea) form.

Do you agree so far?

Published: February 22, 2007 8:38 PM
Sasha Radeta

Fred,

Although I didn't want to waste time on completely irrelevant examples that only show your total ignorance of this topic - I felt so bad for you that I answered your question.
- Same idea can exist simultaneously in many different minds, as well as on different hardware (See, I'm confirming your statement).

Find professional help of different kind (an economist cannot help you).

Published: February 22, 2007 10:07 PM
Stephan Kinsella

Sasha, your bizarre and misplaced arrogance and condescension is laughable, especially considering your own illogial and unsupportable views. By your reasoning, if my neighbor shows me a dance on the condition that I never show anyone else, and I later nevertheless perform it on my property, and a stranger sees me from afar doing the dance, and then soon lots of people are doing this dance, all these third parties are violating my neighbor's rights--after all, his body is hhis "property" and I have "used" it by violating the contract, and thus the third parties are now somehow magically "implicated in the tort". Bizarre that you would think this notion is even coherent, much less compatible with libertarianism and Austrian economics.

Ever since you started your amateur musings on topics like this, you have been learning-while-doing and trying to figure out what you believe; and you ended up positing early on a ridiculous theory and seem now to be unable to keep trying to defend it, untenable as it now obviously appears.

Published: February 22, 2007 10:42 PM
Sasha Radeta

Dr. Kinsella,

I am sorry you got so upset when I pointed out that you were clueless about your definition of scarcity. I want to believe that you are misinterpreting my statements due to this pain and injury to your ego - and not out of malice.

In your bizarre and misplaced example - there was no exchange of real property. You cannot copyright a dance demonstration. You can only make such contract regarding real, physical property. Even statist definition of copyright states that such works must be “original works of authorship” that are “fixed in any tangible medium" (title 17 of US code).

----

It is strange how someone like Dr. Kinsella, who spends so much time writing about copyright, was completely unaware of this prerequisite of any copyright. I am amazed that he chose an example in which there is no tangible medium in order to prove his point. Again, I just hope that he is just hurt and not malicious.

Published: February 22, 2007 11:12 PM
Stephan Kinsella

Sasha,

No need to call me Dr.--I'm just a lawyer, after all! :)

In your bizarre and misplaced example - there was no exchange of real property.
Ah. And here I thought one's body was a scarce resource. Just as I might learn the plot of a book by observing the pattern of print on physical pages of a book, one can learn the dance steps by observing the motions of another's body.
You cannot copyright a dance demonstration.
Um. Surely you are aware of this other post? -- Copyright and dancing.
But the real answer is this. You, like Rothbard, are using an idiosyncratic definition of "copyright". Rothbard envisions some form of private, contractual "copyright" being used to protect not just original works of authorship, which today's copyright law protects, but also *inventions* (like the mousetrap example he gives), which is protected by patent law today. In other words, Rothbard rejects (modern) copyright law (which protects rights to reproduce "original works of authorship"), and modern patent law (which protects exclusive rights in inventions), and wants to "replace" these with a private, contractual institution he confusingly (like Sasha) labels "copyright".

So. If "copyright" (per Rothbard and Sasha) can cover inventions, then presumably it covers what patent law now covers--both inventive apparatuses (things arranged in a new, useful way) and methods or processes. Such as a dance step, for example, which is but a process. If Sasha's novel form of "contractual copyright" (which nonetheless covers "inventions", the domain of today's patent law) covers only apparatus-inventions but not method-inventions, he should let us know what his hypothetical contractual-copyright-invention statute covers. And by the way, let us konw what other forms of invention covered by today's patent system are, or are not, covered by this sui generis "copyright"--what about articles of manufacture, or compositions of matter? What about asexual plant species? what about design patents? How about the human genome? Be a good chap and lay it all out for us, constructivist-style.

You can only make such contract regarding real, physical property.
But Sasha,I thought you were the very one arguing that property extends to our "labor" and "work" and the "energy" of our bodies too!
Even statist definition of copyright states that such works must be “original works of authorship” that are “fixed in any tangible medium" (title 17 of US code).
Yes. But as noted above Rothbard uses his idea of contractual-copyright for a mousetrap, which is an invention (covered by patents now), NOT an original work of authorship (if you think an invention is "basically the same as" an the idea behind "original work of authorship", you are simply ignorant--which is fine, and understandable; but why you want to opine on matters beyond your ken is beyond me. The standard for patentable inventions, indeed, for patentable subject matter--is not the same at all as that for what is subject to copyright protection; the idea that you can cover them by the same general umbrella concept is just an ignorant layman's confusion).
It is strange how someone like Dr. Kinsella, who spends so much time writing about copyright, was completely unaware of this prerequisite of any copyright.
Of course I am. We are discussing not modern positive copyright law, but apparently your and Rothbard's unique and idiosyncratic notion of "contratual copyright" that is some kind of creature that covers inventions, not just original works of authorship.

Published: February 22, 2007 11:40 PM
Sasha Radeta

There is no "need" to call you a doctor, but I'm not doing it out of a need, but with a due respect.

Of course you thought one's body was a scarce resource. It indeed is. But in your dance demonstration example does not involve any tangible medium - so there cannot be a copyright contract. Both mine and Rothbard notion of contractual copyright involve TANGIBLE property.

You also show other kinds of confusion when it comes to your misplaced and bizarre example. While it is true that human body is made of energy (it's a fact of physic) - and self-ownership is another word for energy/labor ownership - it is also true that this energy is unalienable and that no one else can own us (slave contracts are self-contradictory, since no one can theoretically establish full and exclusive control over services that can be derived out of our body).

As far as your "dance patent" article goes, I stated my Rothbardian position clearly:
"In a perfectly free market, someone can sell their dance videos with a contractual stipulation that the user agrees not to commercially use the content presented there. If the copycat used that video without authorization - that's a trespass that may result in tort. In both cases, a smart author could protect his copyright with simple application of private property rights."

So I only talk about tangible video with some recorded dance moves, since the very definition of copyright requires "tangible medium." I don't claim anything beyond that... you'll never catch me advocating copyright when it comes to something non-tangible.

Published: February 23, 2007 12:07 AM
Stephan Kinsella

Of course you thought one's body was a scarce resource. It indeed is. But in your dance demonstration example does not involve any tangible medium - so there cannot be a copyright contract. Both mine and Rothbard notion of contractual copyright involve TANGIBLE property.
Le'ts get this straight: modern statutory copyright law, which covers only original works of authorship and NOT inventions, and which is limited to the expression of such works in tangible media--you are in favor of these criteria of modern copyright law--even though you reject copyright law, and instead favor some novel "contratual copyright" that also happens to cover inventions?
I think you are not even aware of how incoherent this is. It is really pure gibberish.

And let's say that instead of watching my neighbor's body, he loans me his DVD which is a video of him doing this novel dance. He loans it to me on the condition I never ever perform that dance.

However, a month later I go to a nightclub and start doing that dance; and others see it. Eventually, this new dance craze has swept the world.

By your theory all these third parties have committed some tort, by moving their own bodies about in a certain sequence.

How utterly absurd and unlibertarian.

You also show other kinds of confusion when it comes to your misplaced and bizarre example. While it is true that human body is made of energy (it's a fact of physic) - and self-ownership is another word for energy/labor ownership - it is also true that this energy is unalienable and that no one else can own us (slave contracts are self-contradictory, since no one can theoretically establish full and exclusive control over services that can be derived out of our body).
I see. Like, wow, man.
As far as your "dance patent" article goes, I stated my Rothbardian position clearly: "In a perfectly free market, someone can sell their dance videos with a contractual stipulation that the user agrees not to commercially use the content presented there. If the copycat used that video without authorization - that's a trespass that may result in tort. In both cases, a smart author could protect his copyright with simple application of private property rights."
So I only talk about tangible video with some recorded dance moves, since the very definition of copyright requires "tangible medium." I don't claim anything beyond that... you'll never catch me advocating copyright when it comes to something non-tangible.
Yep. Clear as mud.

So, to be "clear" (no offense), in my hypo above, those dancing in a disco a dance they saw othrs do, and so on, are all committing a tort, eh? Wow, like wow man.

Published: February 23, 2007 12:21 AM
Sasha Radeta

Dr Kinsella says:
"By your theory all these third parties have committed some tort, by moving their own bodies about in a certain sequence."

Not true! In your example there is no tort, since you had a contractual obligation. As you perhaps remember a tort is an injury OTHER THAN BREACH OF CONTRACT. Again, I hope that your (almost unbelievable) error comes from your pain and not out of malice.

-----

Why do I insist on tangibility prerequisite, Dr. Kinsella may wonder?
- It is the only way you can prove that someone copied your idea and not reach that discovery by himself... it is as simple as that!

My (and Rothbard's) position does not imply in any way that people don't own their own body/energy and physical work it produces. Such claim would make labor contract unenforceable (if labor was not property, you could avoid paying someone for their delivered services) since validly enforceable contracts only exist where title to property has already been transferred...

But it would be theoretically impossible to copyright labor, since the very proof of contractual breach, as well as proof of tort, depends on physical evidence.

My points are not clear to those who confuse tort with breach of contract... but others should not have any problems.

Published: February 23, 2007 12:29 AM
Stephan Kinsella

Dr Kinsella says: "By your theory all these third parties have committed some tort, by moving their own bodies about in a certain sequence."
Not true! In your example there is no tort, since you had a contractual obligation. As you perhaps remember a tort is an injury OTHER THAN BREACH OF CONTRACT. Again, I hope that your (almost unbelievable) error comes from your pain and not out of malice.
We are talking about the third parties, who are not party to any contract.

Why do I insist on tangibility prerequisite, Dr. Kinsella may wonder?
- It is the only way you can prove that someone copied your idea and not reach that discovery by himself... it is as simple as that!
I think you have no earthly idea what this "tangibility prerequisite" is, much less how to justify it.

Published: February 23, 2007 12:39 AM
Sasha Radeta

Dr Kinsella,

Perhaps you forgot your own example:

"And let's say that instead of watching my neighbor's body, he loans me his DVD which is a video of him doing this novel dance. He loans it to me on the condition I never ever perform that dance.

However, a month later I go to a nightclub and start doing that dance; and others see it. Eventually, this new dance craze has swept the world."

By my theory - no third party ever committed a tort - since they never trespassed against anyone property. By my theory, you committed a breach of contract and you will be responsible for whatever that contract stipulated for damages.

You probably misunderstood my earlier points:
- if someone breaks into your apartment and sees your dance moves (and you can prove this with material evidence, like with video surveillance) and he show them to everyone - this "third party's" actions are tort (financial injury to you, because you will have to pay damages to the author as a consequence of his trespass).
- if someone breaks into your apartment and takes my DVD, that is a trespass and tort against the author of that DVD

----

I think that after so many unbelievable errors on your part, you don't even have an earthly idea about tangibility prerequisite and how entire theory of contractual copyright is simple and perfectly logical.

Published: February 23, 2007 12:53 AM
Fred Mann

"I felt so bad for you that I answered your question."

Feel better now? Good.

To recap what you have already agreed to:
So, you write this sentence on a piece of paper and sell it to me with terms-of-use restrictions. Presumably, your terms of use would not prevent me from reading it and memorizing it ... so that's what I do.
Now, the sentence "I like purple unicorns, diet sprite, and the number 363" exists as an idea in my brain AND as a written sentence on a piece of paper. That is, it now exists in a physical (paper and ink) AND non-physical (idea) form.

Next, I destroy the physical copy you sold me. I burn the paper and ink, so it's gone. This step is not necessary to prove my point, but it illustrates the fact that the physical thing to which your terms of use applied is literally gone. It does not exist anymore, so I can't use it. Clear? I can't use something that doesn't exist, right?
Still, the INTANGIBLE idea remains in my head. Now I write this idea down on paper 10 times. I fully own all of these copies, because I used my memory of the sentence to make them. Unless you want to claim that you own the idea in my head, your copyright scheme is finished.

Published: February 23, 2007 12:55 AM
Sasha Radeta

Fred,

Your example is so laughable that you made me feel even better!

:))

If you destroy physical copy that I sold you, that does not mean you destroyed the contract that allowed you the personal, non-commercial use (including burning) of my book.

If you make unauthorized copies of my work (regardless of whether you stored it on computer hardware or your brain) you breached your contract. You will pay for damages stipulated by your contract.

PS
The funniest thing is that you were convinced that you though of something so smart, that you built-up your ridiculous (and now rebutted) posting, almost the entire day.
: ))

Published: February 23, 2007 1:04 AM
Fred Mann

"If you destroy the physical copy that I sold you, that does not mean you destroyed the contract that allowed you the personal, non-commercial use (including burning) of my book. "

As I said, this step was not necessary to prove my point. Please read more carefully. I included this step in order to make it VERY CLEAR that I was not using the physical book to make my physical copy of the sentence. Again, it is very clear that the physical book was not the source of my newly-printed copy of the sentence, since the book was no longer in existence at the time the copy was made. How can I use something that doesn't exist to make a copy? Impossible.

So clearly, what you are claiming to control with your terms of use is something that is non-tangible and non-scarce. But, as you know, these types of things (ideas) are not ownable. They are not owned by you, and hence can not be restricted by your terms of use. I destroyed the book to demonstrate that you are not in fact concerned with the physical book when you write your terms of use, but rather the non-physical and non-scarce IDEAS that it CONVEYS. This is blatantly obvious.

But to make it even more clear, let's take a closer look at what is happening here.

First, the author thinks of a unique sentence. He then uses a pen and paper to record his idea in physical form, using a series of symbols (letters). These symbols are recognizable to himself and others who know how to read that language. Thus, at a later time he, and anyone else who can read, can decode these written symbols, and thereby have the original idea in his head. Rest assured, the author certainly owns the physical paper and ink that he used to record his idea. But here is the key to the analogy, so pay attention...

These written symbols CONVEY ideas. In essence, the written words are like a passive transmitter, and the idea is the transmission. The physical book can transmit the author's original idea an infinite number of times to an infinite number of people for an indefinite period of time. So, this transmission is not scarce. To sum up...

You can own the physical "transmitter" (i.e. the physical paper and ink), but you can NEVER own the non-physical and non-scarce TRANSMISSION (ideas). But the non-physical transmission is EXACTLY what you are attempting to own and control with your copyright scheme, whether you are aware of it or not.

Now you can certainly attempt to restrict access to the "transmitter" (book), but once access is allowed (i.e. when you allow someone to read the book), you have necessarily allowed the ideas to be transmitted into the reader's brain. This newly created idea in the reader's brain can be used to make any number of physical copies, because again, you don't own the ideas in the reader's brain.

Sorry, but you just don't. The contract is invalid. Period.

Published: February 23, 2007 2:33 AM
Sasha Radeta

Fred,

You are no longer funny - you are actually tragic. Why do you insist on your silliness and seek more humiliation?

I never claimed that you were "using the physical book to make your physical copy of the sentence"

All I said is that you violated your contract - which clearly stated that any unauthorized replication of my work will belong to me. I will be able to easily prove that you committed such breach (by comparing my original with your copies) - and I nobody sane would even care about those insane steps in your violation of our contract, because contract never cared about your methods of replication.

So your attempt to prove that I advocate "idea ownership" failed once again. All your ramblings that you devoted to that idea are completely useless. I only advocate strict adherence to enforceable contracts and protection of property rights when it comes to unwanted use.

Ciao!

Published: February 23, 2007 3:41 AM
Sasha Radeta

Just to prevent any further, 1,000 mile-long raving about irrelevant assumptions:

Copyright contracts would not aim to restrict certain types of reproduction of some unique property (while allowing others) - they would prohibit any act of reproduction and provide for damages that would make these unauthorized copies the property of the original's author.

Don't confuse breach of contract with trespass, in which the direct and unauthorized use of other's property is necessary to qualify it as such.

Published: February 23, 2007 3:58 AM

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